BAYKEEPER, INC.; KENNETH J.                                No. 00-55621
                                                                                D.C. No.
Plaintiffs-Appellees,                                                CV-96-01492-RMB

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding

Argued and Submitted
February 8, 2001--Pasadena, California

Filed March 20, 2001

Before: Harry Pregerson, William C. Canby, Jr., and
David R. Thompson, Circuit Judges.

Opinion by Judge Canby



David L. Mulliken; Dorn G. Bishop, Latham & Watkins, San
Diego, California, for the defendant-appellant.

Charles S. Crandall, San Luis Obispo, California; Everett L.
DeLano, II, San Marcos, California, for the plaintiffs-



CANBY, Circuit Judge:

This is the third appeal by Defendant Southwest Marine,
Inc., arising from an action brought against it by Plaintiffs
Natural Resources Defense Council, San Diego Baykeeper,
and Kenneth J. Moser under the citizen suit provisions of the
Clean Water Act, 33 U.S.C. S 1365(a). Southwest Marine's
first two appeals, challenging the district court's judgment in
favor of Plaintiffs and the imposition of injunctive relief and
a civil penalty, were consolidated and earlier heard by this
court, which affirmed the district court. See Natural
Resources Defense Council v. Southwest Marine, Inc. , 236
F.3d 985 (9th Cir. 2000). In this appeal, Southwest Marine
challenges for lack of jurisdiction and abuse of discretion the
district court's modification, while the consolidated appeal
was pending, of certain of the injunctive measures contained

in the original judgment. We conclude that the district court
had jurisdiction and discretion to make the post-appeal modi-
fications, which slightly modified and enforced the injunction,
to preserve the status quo. Accordingly, we affirm.


For a comprehensive procedural history and factual back-
ground of this Clean Water Act enforcement action, we refer
the reader to Judge Graber's opinion resolving the consoli-
dated appeal of the original judgment. See Natural Resources
Defense Council, 236 F.3d at 990-94. We set forth here only
a general overview of the litigation and the background neces-
sary to an understanding of this subsequent, limited appeal of
the district court's post-judgment modifications to the injunc-

Southwest Marine repairs and maintains marine vessels at
its shipyard on San Diego Bay. Work is conducted at its five
piers and two floating dry docks. Shipyards like Southwest
Marine's generate pollutants, including paint chips, abrasive
grit, and "antifouling paints" that prevent growth of aquatic
organisms on ships and are toxic to aquatic life. These pollu-
tants are discharged into adjacent waters primarily through
leaks, spills, and storm water runoff. Plaintiffs sued South-
west Marine in 1996 under the Clean Water Act, alleging that
Southwest Marine had not properly developed nor imple-
mented pollution prevention plans to control its discharges
into San Diego Bay as required by its various government

After a trial, in a judgment dated September 7, 1999, the
district court found against Southwest Marine and imposed an
injunction and a civil penalty. The injunction required that
Southwest Marine, inter alia, (1) test the water column
around each vessel being blasted or painted by taking water
samples "at the surface and at each 20-foot interval between
the water surface and the bottom of the Bay," and (2) capture

all pier storm water runoff "in a reasonably expeditious man-
ner." The district court simultaneously issued a limited stay.
That portion of the limited stay relevant here stayed enforce-
ment of (1) the water column testing requirement, pending
further argument and briefing on whether the district court
should substitute testing of the surface "microlayer" for test-
ing "at the surface," and (2) the pier storm water capture
requirement, pending further argument and evidence on possi-
ble engineering alternatives.

The district court eventually received additional briefing
and held a hearing on the injunctive measures that had been
temporarily stayed, but not until after Southwest Marine had
appealed the original judgment, including the injunction.
After the hearing, in an order dated March 7, 2000, the district
court modified the injunction and lifted the stay. Among the
modifications made, the district court (1) substituted testing of
the surface "microlayer" for testing "at the surface," and (2)
substituted an 18-month deadline (running from the March 7,
2000 order) for the requirement of "reasonably expeditious"
construction of a facility to capture pier storm water runoff.
Southwest Marine then brought the present appeal, challeng-
ing the district court's jurisdiction and discretion to make
these two particular modifications.

While this appeal was pending, the earlier consolidated
appeal was decided and an opinion issued affirming the dis-
trict court's original judgment against Southwest Marine,
including the injunction and the civil penalty. See Natural
Resources Defense Council, 236 F.3d at 990. That opinion
purported to affirm the injunction "in its entirety," the court
having been made well aware by the parties of the district
court's post-judgment modifications to the injunction. See id.
at 1001. The issue of the district court's jurisdiction to modify
the injunction, however, was neither argued nor resolved in
the consolidated appeal, and thus remains to be decided here.


We have jurisdiction over this appeal pursuant to 28 U.S.C.
S 1291. The district court's post-judgment order modifying
the injunction and lifting the stay is final and appealable,
because it disposed completely of the issues raised in the post-
judgment proceedings. See United States v. One 1986 Ford
Pickup, 56 F.3d 1181, 1184-85 (9th Cir. 1995) (per curiam);
United States v. Washington, 761 F.2d 1404, 1406-07 (9th
Cir. 1985).


[1] This court reviews de novo the district court's exercise
of subject matter jurisdiction. Burlington N. Sante Fe Ry. Co.
v. International Bhd. of Teamsters Local 174, 203 F.3d 703,
707 (9th Cir. 2000) (en banc). We conclude that the district
court possessed jurisdiction to modify the injunction while the
consolidated appeal was pending, because the changes pre-
served the status quo and did not materially alter the status of
the case on appeal.

Once a notice of appeal is filed, the district court is divested
of jurisdiction over the matters being appealed. Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(per curiam); McClatchy Newspapers v. Central Valley Typo-
graphical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982).
This rule is judge-made; its purpose is to promote judicial
economy and avoid the confusion that would ensue from hav-
ing the same issues before two courts simultaneously. Mas-
alosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir.
1983); 20 James Wm. Moore, Moore's Federal Practice,
S 303.32[1] (3d ed. 2000). The principle of exclusive appel-
late jurisdiction is not, however, absolute. Masalosalo, 718
F.2d at 956; 20 Moore's S 303.32[2][b]. The district court
retains jurisdiction during the pendency of an appeal to act to
preserve the status quo. Newton v. Consolidated Gas Co., 258
U.S. 165, 177 (1922); Hoffman v. Beer Drivers & Salesmen's

Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir. 1976);
United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th
Cir. 1951).

[2] This exception to the jurisdictional transfer principle
has been codified in Rule 62(c) of the Federal Rules of Civil
Procedure, which allows a district court to "suspend, modify,
restore, or grant an injunction during the pendency of the
appeal upon such terms as to bond or otherwise as it considers
proper for the security of the rights of the adverse party." This
Rule grants the district court no broader power than it has
always inherently possessed to preserve the status quo during
the pendency of an appeal; it "does not restore jurisdiction to
the district court to adjudicate anew the merits of the case."
McClatchy Newspapers, 686 F.2d at 734. Thus, any action
taken pursuant to Rule 62(c) "may not materially alter the sta-
tus of the case on appeal." Allan Ides, The Authority of a Fed-
eral District Court to Proceed After a Notice of Appeal Has
Been Filed, 143 F.R.D. 307, 322 (1992).

[3] In this case, both of the district court's challenged mod-
ifications to the injunction preserved the status quo. The status
quo as of the filing of Southwest Marine's consolidated
appeal required Southwest Marine to conduct water column
testing, including testing "at the surface," and to take steps to
capture storm water runoff from piers "in a reasonably
expeditious manner." The purpose of the water column testing
is to determine whether blasting or painting operations con-
ducted by Southwest Marine on each vessel in dry dock or at
pier side is contributing to pollution levels in San Diego Bay.
The purpose of the storm water capture requirement is to pre-
vent Southwest Marine from discharging storm water that
degrades the marine habitat of its offshore leasehold, which
the district court found to be "devoid of life. " The district
court's post-judgment modifications to the injunction were
minor adjustments that effectuated the underlying purposes of
the original requirements.

The district court noted at the post-judgment hearing that
the phrase "at the surface" was vague and did not ensure that
Southwest Marine's water column testing would accomplish
the purpose behind the requirement--finding the source of the
degraded condition around the piers. Southwest Marine said
at the post-judgment hearing that it had been conducting
water column testing, but could not tell the district court pre-
cisely how much of the surface layer it was capturing in its
samples--e.g., whether it was scooping down below the sur-
face as far as several inches to take its surface samples. By
defining "at the surface" to mean the surface "microlayer,"
defined as the top 50 micrometers of the water column, the
district court ensured that Southwest Marine's surface sam-
ples accurately measured the pollutants temporarily resting on
the film atop the water column, as originally intended.
Although the district court did not find the phrase "in a rea-
sonably expeditious manner" to be vague, Southwest Marine
did. Southwest Marine itself raised the issue of the timeline,
at the post-judgment hearing, specifically requesting the dis-
trict court to "clarify the timing of the implementation" of the
pier storm water capture requirement. The district court
obliged by specifying that the pier storm water capture facility
must be built within 18 months of the May 7, 2000 order, to
comply with the "reasonably expeditious" standard.

[4] These modifications did not materially alter the status
of the consolidated appeal. They left unchanged the core
questions before the appellate panel deciding the consolidated
appeal: whether the district could permissibly (1) require any
water column testing, including testing "at the surface," or (2)
require the construction of a pier storm water capture facility.
This case is accordingly distinguishable from McClatchy
Newspapers, where the district court amended its original
judgment, in which it had affirmed an arbitrator's decision
that a guarantee of lifetime employment survived a sympathy
strike, to require reinstatement of the striking employees. 686
F.2d at 732-33. The reinstatement issue had not received a full
and fair hearing, was not before the appellate court, and could

not be undone by the appellate court's ultimate reversal of the
arbitrator's decision. Id. at 735 (noting that affirmance of the
district court's amended judgment "would affect substantial
rights of the parties after appeal"). Thus, the reinstatement
order had impermissibly altered the status of the case on
appeal. Southwest Marine's case presented a very different
situation. If the core requirements of water column testing and
pier storm water capture were ultimately reversed on appeal,
the "microlayer" testing requirement and the 18-month con-
struction deadline would also effectively be reversed, leaving
none of Southwest Marine's substantial rights affected after
the conclusion of the consolidated appeal. Southwest Marine
had a full and fair hearing on these core issues before the dis-
trict court and before the appellate panel deciding its consoli-
dated appeal.

We are unpersuaded by Southwest Marine's conclusory
assertions that the post-judgment modifications impermissibly
expanded the scope of the injunction by increasing its burden
on Southwest Marine. Southwest Marine argues that
"microlayer" testing (1) is "significantly more onerous" than
testing "at the surface;" (2) "no shipyard in the country" is
required to do it; and (3) its benefits are "unclear." Yet,
Southwest Marine offers no citations to the record to support
its argument. Southwest Marine had the opportunity to put
supporting facts in the record, by making its case against
"microlayer" testing during post-judgment proceedings. The
issue of substituting testing of the "microlayer " for testing "at
the surface" was specifically contemplated by the district
court in its limited stay of enforcement, which required South-
west Marine to evaluate the costs and benefits of this substitu-
tion and submit its findings to the district court. The district
court then heard oral argument on the issue at the post-
judgment hearing. Southwest Marine presented no evidence
that "microlayer" testing would increase its costs and burdens
as compared to testing "at the surface." In fact, when discuss-
ing the implications of requiring "microlayer " testing with the
district court at the hearing, Southwest Marine merely reiter-

ated its objection to having to conduct any water column test-
ing at all. With respect to redefining "at the surface" to mean
the surface "microlayer," Southwest Marine told the district
court, "[t]hat would be fine," and, "we don't have any objec-
tion to doing that and running that through the same tests that
are being otherwise done." Thus, having provided no evi-
dence that the "microlayer" testing requirement increased its
burdens under the injunction, Southwest Marine fails to dis-
suade us from our conclusion that the modification was a
minor adjustment of the injunction that preserved the status

Southwest Marine similarly fails to persuade us that an 18-
month deadline for constructing the pier storm water capture
facility is more burdensome than the original "reasonably
expeditious" requirement. Any argument that 18 months is an
unreasonable amount of time from start to finish of construc-
tion is undermined by Southwest Marine's offer at the post-
judgment hearing to build the facility in as short a time as 12
months, and by the fact that its original NPDES permit
required that it control its storm water discharges into the Bay
within 18 months of the issuance of the permit, or by Septem-
ber 17, 2000. Clearly, Southwest Marine's purpose in raising
the timeline issue at the hearing was not to ensure that the
time given for construction was sufficient from start to finish,
but to delay either the start or the finish long enough to avoid
building the facility before the conclusion of the consolidated
appeal. Southwest Marine has made no secret of this purpose,
arguing to the district court and to this court on appeal that
any deadline is too burdensome, including a "reasonably
expeditious" requirement, so long as the pier storm water cap-
ture requirement could still be reversed on appeal. But a dis-
trict court is not deprived of power to require action by a fixed
date simply because that date may arrive before appeals are
exhausted. If compliance with the injunction threatens to
deprive a party of the benefit of a successful appeal, it is up
to that party to obtain a stay of the judgment. See Holloway
v. United States, 789 F.2d 1372, 1373-74 (9th Cir. 1986).

Southwest Marine sought such a stay in connection with its
prior appeal, but was unable to convince this court that a stay
should be granted. Having been denied the stay, and having
failed otherwise to establish that the 18-month deadline
impermissibly modifies the original injunction by increasing
its burdens, Southwest Marine is properly subject to that

In sum, neither modification at issue here impermissibly
altered the status quo with respect to the appeal of the injunc-
tion. Thus, the district court had jurisdiction under Rule 62(c)
to make the modifications.


[5] We review for abuse of discretion a district court's
orders under Rule 62(c), Sierra Club v. Cedar Point Oil Co.,
73 F.3d 546, 579 (5th Cir. 1996), as well as its determination
of the scope of an injunction under the Clean Water Act. Nat-
ural Resources Defense Council, 236 F.3d at 1000. We con-
clude that the district court acted within its sound discretion
to make the modest modifications to the injunction that it did.

As we pointed out in the previous section, the requirement
to sample the microlayer was necessary to ensure control of
surface pollutants, thereby serving the purposes of the Clean
Water Act. The 18-month deadline allowed a reasonable time
for construction of a facility to capture storm water runoff,
and similarly served the purposes of the Act. The district
court thus did not abuse its discretion with regard to the mer-
its of its modifications of the injunction.

Southwest Marine attempts to raise a procedural objection,
however; it contends that the district court abused its discre-
tion by modifying the injunction to add requirements that
Southwest Marine was unable to contest in its prior appeal.
This point has become moot, however, because Southwest
Marine has had the opportunity to contest the modifications

in the present appeal.1 We conclude, therefore, that there was
no abuse of discretion, either in procedure or substance.2


For the foregoing reasons, the decision of the district court


1 In its reply brief in the prior appeal, Southwest Marine did challenge
the modification requiring sampling of the microlayer.
2 Southwest Marine also argues that the modifications deprived it of a
right to have the ambiguous terms of the original injunction construed in
its favor in the prior appeal. It relies on Ford v. Kammerer, 450 F.2d 279
(3d Cir. 1971). The right recognized in Ford, however, was the right of
a person charged with criminal contempt for violation of an injunction to
have ambiguous terms construed in his favor; the case is wholly inapplica-
ble here. Southwest Marine cites no authority depriving the district court
of power further to define the injunction's terms in order to preserve the
status quo. As we have pointed out, Rule 62(c) permits such modification.
See McClatchy Newspapers, 686 F.2d at 734.